(concurring in part, dissenting in part).
I do not agree with the majority decision that a “qualified elector” must be a citizen who has registered to vote.
The preamble to the referendum petition herein involved states: “WE THE UNDERSIGNED, duly qualified electors of the municipality of Aberdeen . . . ” SDCL 12-1-3(7) defines “elector” as “a person qualified to register as a voter, whether or not he is registered.” Registration is not a prerequisite to being a qualified elector. The circuit court confused “elector” with “voter.” A voter is defined by SDCL 12-1-3(10) as: “ ‘Voter,’ a person duly registered to vote or one who is performing the act of voting.”
The majority decision cites the South Dakota Constitution, Article III, § 1, as authority for requiring a citizen to register to vote before he can legally lend his signature to a referendum petition. Article III, § 1 provides:
The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right to propose measures, which measures the Legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions: provided, that not more than five per centum of the qualified electors of the state shall be required to invoke either the initiative or the referendum. (Emphasis supplied.)
Such an authoritative interpretation of the Constitution is too great a strain on the language to render the majority opinion persuasive. Notwithstanding any legislative act, our Constitution is controlling.
*904I believe there is a vast difference between signing a referendum petition and voting on the issue itself. No laws, ordinances, or legal policy has ever been effected by the signature of an individual on a referendum petition. A vote by the entire affected electorate is required before any legal changes can occur which have their genesis in a referendum petition. A referendum petition, if and when it contains the prerequisite amount of signatures, merely allows a proposal to be voted upon. Since referendum petitions themselves cannot be voted into law, I believe a strict construction of our state Constitution’s definition of “qualified electors” is necessary. In requiring registration prior to signing a referendum petition, the majority opinion will preclude interested individuals from effectively asserting their grievances and potentially presenting their concerns before a vote of the general public. Such a preclusion lacks clear and persuasive authority and is contrary to our system of governmental democracy.
I am authorized to state Justice FOSH-EIM joins in this concurrence in part and dissent in part.